Our Passion for Prenups

Here’s another article about prenuptial agreements, this one from the East Valley Tribune in Arizona. It follows a now-familiar pattern. The reporter typically talks to one couple who has negotiated a prenuptial agreement, one who didn’t and had a messy divorce, and 2-3 lawyers who all talk about what a wonderful idea it is to do a prenup. The reporter slaps it together and moves on, and the truth is left lying on the press room floor, unwritten and unread.

As I am on so many issues, let me be the voice in the wilderness here, crying to anyone who will listen that most of us do NOT need a prenuptial agreement. By and large, our perception that prenups are a good idea is driven by divorce lawyers who know they are a good source of revenue, with assistance from a gullible media.

The most contentious issues by far in many divorces revolve around children: child custody and child support. Prenuptial agreements cannot and should not address those issues, because only the court has jurisdiction to decide where children should live or how their parents should support them after divorce.

And too often, the issues a prenuptial agreement DOES resolve tend to get resolved in ways most of us would consider unjust. For example, is it really just or fair for a woman to sacrifice her career and earning power to stay home and take care of children, then when her husband divorces her after a 25 year marriage (he earns six figures, she earns little or nothing), to send her out into the world with nothing?

Most of us would say no. Yet that is the kind of provision that appears in many prenuptial agreements. It sounds fair when two people are starting out life, but it becomes less fair with every year they stay married. The principle is the same when it’s the woman who earns the big bucks and the man who stays home; it’s just that it’s usually the man who earns more and the woman who cares for children.

One of the dirty little secrets about our system of family law is that, by and large, it’s pretty logical. Having presided over my share of prenuptial agreements (generally after working to persuade the client that it’s not necessary), I can assure you without reservation that the resolutions fostered by divorce court judges are almost always more fair, more logical, and more just than the resolutions fostered by prenuptial agreements.

That’s not because divorce court judges are smarter than other people; it’s because they get to know all the facts (or at least most of the relevant facts). Judges don’t have to anticipate all the possible factors that might intervene in the next 30 years of a couple’s life that might change their earning power, their reliance on each other, or their trust in each other. Divorce court judges can wait until those circumstances have actually occurred and decide what is fair now.

And at the risk of repeating the obvious, let’s all agree that a prenuptial agreement is a real downer for romance. To ensure that the prenuptial agreement will be valid, each spouse typically has his or her own lawyer, who is (as lawyers should) alerting his or her client to the various risks included in each scenario under discussion. At the moment, then, when a man and a woman should be reveling in the mystery, the suspense, and the joy of their married life together, we force them instead to contemplate, discuss, and prepare for their possible divorce.

So what CAN a man and woman do to ensure fairness in their dealings with each other? For starters, I’m a big believer in making sure both spouses understand family law. With a rudimentary understanding of the way family law works, most people can avoid making the most obvious and costly mistakes in the way they hold assets and incur debts. Then if their spouse dies, or they get a divorce, there won’t be a big and unpleasant surprise.

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